Judges could free detainees in U.S.

When it comes to keeping Guantanamo inmates locked up indefinitely in the United States, the problem really isn’t the jails, some lawyers say—it’s the judges and the law.

While some Americans fear that Guantanamo prisoners brought to U.S. prisons might break out, a far more likely possibility is that some of the terror suspects will simply walk out at some point in the future on the order of a federal judge.

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On Friday, Attorney General Eric Holder announced plans to bring five men from Gitmo to New York to face trial in a civilian court for allegedly plotting the Sept. 11 attacks. The Justice Department is likely to transfer several dozen inmates to the U.S. later for open-ended detention, and dozens more could join them if the U.S. can’t find another country to accept them.

Critics are warning that prosecutions are inherently unpredictable and that bringing prisoners onto U.S. soil dramatically improves their chances of being released here some day.

“All the media focus on bringing them into the U.S. has talked about the physical threat [of an escape]. That’s the least of our problems. We’ve got prisons that can contain a physical threat.” said Jan Ting, a law professor at Temple University and a top immigration official under President George H.W. Bush. “That’s really the wrong question to ask. There are legal entanglements that happen when you bring people to the U.S.”

Few expect that someone like the most high-profile prisoner being moved to the US for trial – Khalid Sheikh Mohammed – would ever be released here. But evidence against many of the other 214 men currently at Gitmo is less clear-cut and judges have already ruled there are no grounds to hold about 30 of them.

Even with the handful being sent to criminal trials, there can be no iron-clad assurance of conviction, according to former Attorney General Michael Mukasey. “Betting the farm on the outcome of that process always involves a risk,” said Mukasey, who as a federal judge oversaw the trial of 1993 World Trade Center bombers.

“A case may fall apart for some reason—now these people are on American soil,” Ting said. “If you don’t have a criminal conviction, in that case, someone could be put out on the streets.”

Senate Minority Leader Mitch McConnell (R-Ky.) is also warning of the possibility that judges will order some of them released.

“Once the administration brings detainees into the United States, it is no longer simply about what the administration will or will not do with them. It's also about what a federal judge will or will not do,” McConnell wrote Monday in the National Law Journal.

During a speech in May, Obama vowed not to release Guantanamo prisoners who pose a threat to the U.S., but stopped short of promising that no one presently at Gitmo would ever be free in this country.

“I am not going to release individuals who endanger the American people,” Obama declared.

However, the president also made clear that he would not defy the courts. “I cannot ignore these rulings because as President, I, too, am bound by the law. The United States is a nation of laws and so we must abide by these rulings,” he said.

More recently, the White House has broadened the president’s vow—while implicitly acknowledging that Obama may not have the final say.

“The President will not voluntarily release any detainee into the United States,” a White House official said in September.

The White House said Monday that it considers the possibility of a prisoner’s release in the U.S “very difficult to imagine” because Congress has passed legislation barring it.

“A court would have to say political branches are precluded from doing the things they regularly do, which is say someone does not have lawful status in the United States,” a White House official said. “This would be literally unprecedented.”

If such a situation appeared imminent, the administration would work to deport or extradite the prisoner, said the official, who asked not to be named. “We would not create a circumstance where a person could be released into the U.S.,” the official insisted.

On Friday, Holder dodged reporters’ questions about contingency plans for an acquittal or dismissal. “I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one,” he said.

In a conference call with reporters, a senior Defense Department official said an acquitted prisoner could be kept locked up under the same “law-of-war detention” presently used to justify confinement at Gitmo.